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TMI Blog2024 (11) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... esent Appeal is filed by the Appellant, the Suspended Director, under Section 61 of the Insolvency and Bankruptcy Code, 2016 ("IBC") against the Order dated 05.06.2024 passed by the Hon'ble National Company Law Tribunal (Adjudicating Authority), New Delhi, Bench in I.A. No. 5166/2023 in CP (IB) /223/2020 whereby the said I.A. was allowed and the Appellant was directed to deposit a sum of Rs. 3,67,900/- (Rupees Three lakhs, sixty-seven thousand and nine hundred only). 2. The Corporate Debtor was incorporated on 04.04.2013, with a paid-up capital of Rs 66 lakhs only. It is claimed that the Corporate Debtor was doing good business but it faced a financial crunch in 2019 and started looking for financial assistance from Banks and NBFCs. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the Applicant has not submitted his opinion in the Application and was supposed to submit his opinion and grounds thereof as per the provisions of Section 43 of the IBC. 7. It is claimed that the Impugned Order is liable to be set aside as the Adjudicating Authority has passed an Order, without due Application of mind and cogent reasons in respect of its conclusion/findings in the Impugned Order. It has therefore sought for the following relief(s): a) Allow the present Appeal; b) Set aside the Impugned Order dated 05.06.2024 passed by the Hon'ble Adjudicating Authority; c) Pass any other order/direction in the facts and circumstances of the present Appeal and in the interest of the justice. Appraisal 8. Heard Learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usand and nine hundred only) in favour of the Appellant/ Mr Alok Tripathi, reportedly against the outstanding secured loan. As the payment has been made in preference to the other creditor of the CD, this is a preferential transaction under Section 43. This transaction was conducted within the look-back period and unjustly enriched certain creditors. On the basis of the Transaction Audit Report, the Liquidator/Respondent filed an Application under Section 43 of the IBC, 2016 before the NCLT on 19.07.2023. Therefore, it was prayed that the amount of Rs. 3,67,900/- (Rupees Three lakhs, sixty-seven thousand and nine hundred only) received by the unsecured creditor of the Corporate Debtor be vested in the Corporate Debtor for the reason of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nism, viz. Section 53 of IBC, 2016". 16. Section 43 (2) (a) of the Code clearly provides as follows: "(2) A corporate debtor shall be deemed to have given a preference, if- (a) there is a transfer of property or an interest thereof of the corporate debtor for the benefit of a creditor or a surety or a guarantor for or on account of an antecedent financial debt or operational debt or other liabilities owed by the corporate debtor; and (b) the transfer under clause (a) has the effect of putting such creditor or a surety or a guarantor in a beneficial position than it would have been in the event of a distribution of assets being made in accordance with section 53." 17. From the records we note that the Liquidator had got a Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Liquidator and could have got his share in terms of the provisions of Section 53 of the Code. It is worth noting that the Adjudicating Authority noted that the Liquidator shall look into the claim of the amount of the Appellant/ Mr Alok Tripathi while distributing the assets/funds/properties of the Corporate Debtor as per the waterfall mechanism under Section 53 of the Code. Conclusion and Order 20. When the Liquidator has got a Transaction Audit Report done and basis that has come to a conclusion that this is a preferential transaction, after which he filed an I.A. before the Adjudicating Authority, in such conditions, we cannot agree with the submissions of the Appellant that the Liquidator has not formed an opinion. We reject the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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